23 Fla. L. Weekly Supp. 595a
Online Reference: FLWSUPP 2306MENAInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that states unequivocally that medical benefits shall be payable at lesser of 80% of actual charges or 80% of schedule of maximum charges contained in section 627.736(5)(a)1 clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
MILLENNIUM RADIOLOGY, L.L.C., a/a/o ROSA MENA, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-06298 SP 05 (06). September 24, 2015. Charles Johnson, Judge. Counsel: Ana D’Costa de la O, Law Offices of Shirejian & O’Hara, Aventura, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION FOR SUMMARYJUDGMENT AND ENTERING FINALJUDGMENT IN FAVOR OF DEFENDANT
Defendant, MERCURY INSURANCE COMPANY OF FLORIDA, moved for summary judgment to declare MERCURY was correct in limiting reimbursement of the Plaintiff’s charges in accordance with the fee schedules described in Fla. Stat. §627.736(5)(a)(1) and MERCURY’S policy of insurance; while Plaintiff, MILLENNIUM RADIOLOGY, LLC, moved for summary judgment to declare that MERCURY’S policy was ambiguous; and therefore, MERCURY did not have the authority to apply the fee schedule to Plaintiff’s bill. Thus, the issue presented to the Court was whether MERCURY’S policy gave the required notice to its Insured of Mercury’s election to apply the Medicare fee schedule methodology to limit reimbursements. Based on the analysis below, because MERCURY’S policy clearly and unambiguously states that it may apply the fee schedule to a medical provider’s bills, it gave the proper notice to its Insured.
STATEMENT OF RELEVANT FACTS
The pertinent parts of the applicable policy of insurance, Mercury’s U-85 (1/2013) Endorsement state:
PART II – PERSONAL INJURY PROTECTION (“PIP”)
5. Medical Benefits shall be payable at the lesser of:
a. 80% of the actual charge, or
b. 80% of the following schedule of maximum charges contained in the No Fault Law:
1. For emergency transport and treatment by providers licensed under Florida Statutes, Title 29, chapter 401, 200 percent of Medicare.
2. For emergency services and care provided by a hospital licensed under Florida Statutes, Title 29, chapter 395, 75 percent of the hospital’s usual and customary charges.
3. For emergency services and care as defined by Florida Statutes Title 29, s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
4. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
5. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
6. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B, except as follows: 200 percent of Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories, and 200 percent of the Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment. However, if such services, supplies, or care is not reimbursable under Medicare Part B, we may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed.
7. For purposes of subparagraph 5(b)(6), if a Current Procedural Terminology (CPT) code is not reimbursable under the participating physicians schedule of Medicare Part B at the time the services, supplies or care was rendered, we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statutes Title 31, s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.
The endorsement specifically states MERCURY will pay 80% of the following schedule of maximum charges contained in Florida Statute §627.736(5)(a)(1). The pertinent parts of Fla. Stat. §627.736(2013) state:
(1) REQUIRED BENEFITS.
Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection . . . of $10,000. . . as follows:
(a) Medical Benefits. Eighty percent of all reasonable expenses . . .
* * *
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section . . .In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider . . . reimbursement levels in the community and various federal and state medical fee schedules . . . and other information relevant to the reasonableness of the reimbursement . . . .
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
* * *
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:
i. The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).
ii. Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.
iii. The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
STANDARD OF REVIEW
Pursuant to Rule 1.510, Fla. R. Civ. P., where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, establish no genuine issues of material fact as to Plaintiff’s allegation MERCURY has failed to pay Plaintiff’s loss without reasonable proof of not being responsible for said payment, MERCURY is entitled to summary judgment as a matter of law. See, Fla. R. Civ. P. 1.510. The granting of summary judgment is proper where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. “The standard for reviewing the entry of summary judgment requires that a party moving must conclusively show the absence of any genuine issue of material fact.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Once the moving party on a motion for summary judgment meets its burden in demonstrating there are no genuine issues of material fact and is entitled to judgment as a matter of law the “party opposing the entry of summary judgment must prove the existence of genuine triable issues.” First North American Bank v. Hummel, 825 So. 2d 502 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D2010a].ANALYSIS
MERCURY’S policy terms follow recent Florida decisions finding that the fee schedule provisions of the No-Fault Law cannot not be applied absent a specific policy provision. In clear and unambiguous language, the MERCURY policy specifically outlines how it will pay a given medical bill.
Penzer v. Transportation Ins. Co., 29 So. 3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a] is a recent decision of the Florida Supreme Court dealing with insurance policy interpretation. In that case, the certified question posed by the 11th Circuit Court of Appeals in Atlanta was whether coverage was provided under a commercial liability policy for statutory violations involving so-called “blast faxing.” In that case, as here, the Court was faced with the preliminary question of determining whether the insurance policy was ambiguous. The Court stated:
In interpreting insurance contracts, this Court follows the generally accepted rules of construction, meaning that “[i]nsurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a] (citing Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a]). “If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous.” Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291 (Fla. 2007) [32 Fla. L. Weekly S657a](quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]). To find in favor of the insured on this basis, however, the policy must actually be ambiguous. Garcia, 969 So. 2d at 291 (citing Taurus Holdings, 913 So. 2d at 532). “A provision is not ambiguous simply because it is complex or requires analysis. . . . ‘[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms.’ ” Garcia, 969 So. 2d at 291 (citation omitted) (quoting Taurus Holdings, 913 So.2d at 532).
. . . . Consequently, the first step towards discerning the plain meaning of the phrase is to “consult references [that are] commonly relied upon to supply the accepted meaning of [the] words.” Garcia, 969 So. 2d at 292 (citing Gov’t Employees Ins. Co. v. Novak, 453 So. 2d 1116, 1118 (Fla. 1984)). [E.G.,] Webster’s Third New International Dictionary . . . (1981). (Emphasis added.)
Penzer, 29 So. 3d at 1005.
In this case, while the policy language involves the level of complexity necessary to implement the No-Fault Law, the PIP endorsement is only capable of one interpretation, the interpretation that permits Mercury to apply the statutory fee schedules, including Medicare Part B. Moreover, even if the Mercury policy were to be deemed ambiguous, the Insured, and not the Provider, would be entitled to the interpretation that maximizes benefits and limits the liability for expenses incurred by the Insured.
The deciding issue in this case was whether MERCURY was entitled to limit reimbursement of Plaintiff’s charges in accordance with the fee schedules identified in MERCURY’S policy of insurance and in Fla. Stat. §627.736, thereby barring Plaintiff from any additional recovery from MERCURY. Pursuant to Allstate Property and Casualty Ins. Co. and Allstate Fire and Casualty Ins. Co. v. Royal Diagnostic Center, Inc., Case No.: 13-073 AP, in the Circuit Court of The Eleventh Judicial Circuit in and for Miami-Dade County, Florida (April 3, 2014, Judges Smith, Lobree, and Verde) [21 Fla. L. Weekly Supp. 627a], and Allstate v. Stand-Up MRI, 2015 WL 1223701 (Fla. 1st DCA 2015), the applicable policy of insurance in the instant case states unequivocally that medical benefits shall be payable at the lesser of: a. 80% of the actual charge, or b. 80% of the following schedule of maximum charges contained in Florida Statute §627.736(5)(a)(1). This can have only one meaning. In no instance will MERCURY pay more than the amount calculated from the fee schedules denominated in Florida Statute §627.736(5)(a)(1). Here, MERCURY has followed the instructions set forth by case law in that it has unambiguously selected to utilize the fee schedules referenced in the PIP statute as a limitation on the amount it will reimburse for covered medical expenses.CONCLUSION
The aforementioned law and the applicable policy of insurance allowed MERCURY to reimburse Plaintiff according to the parameters outlined within section 627.736(5)(a)(1). Accordingly, MERCURY’S Motion for Summary Judgment is granted; and Plaintiff’s Motion for Summary Judgment is denied. Plaintiff shall go hence without day. Final Judgment is entered in favor of MERCURY in this case; and Plaintiff shall take nothing by this action.
It is FURTHER ORDERED AND ADJUDGED that this Court reserves jurisdiction to address the issues of taxable attorney’s fees and costs, if any.
